Commonly asked questions answered by our criminal lawyers:

Criminal court in Ontario can be confusing to those who have never been charged before.  Here you will find a collection of commonly asked questions about the criminal process that may assist you in deciding how to best approach your particular case.

In addition to the answers on frequently asked questions about the criminal process, you will find a collection of articles on various legal topics.  The information provided is not intended to substitute experienced legal counsel and advice.

If you have any specific legal problem, it is strongly urged that you contact a lawyer immediately so they may apply their specific expertise to your specific case.

The police have a duty to investigate crime. Therefore, whenever someone makes an allegation about a crime the police will generally investigate that complaint. Police will often start their investigation by asking questions of those people that may know something about the allegation, including investigating the suspect(s).

You have a right to silence. The choice is yours.

The choice to cooperate with the police, whether as a witness or as a potential suspect, is up to the individual. Generally speaking there is no requirement that a person assist in a police investigation unless they are required by a specific law to do so, or are compelled by a judicial Order (such as a production order). As an arrested or detained accused, the person has a complete right not to cooperate with the police except in very narrow circumstances (such as being required to provide a breath sample). These examples where a person is required to cooperate are very rare, and are best addressed by speaking to a lawyer on whether there is such an obligation.

It’s not easy to stay silent in the face of police questioning. Speaking to a lawyer can assist you in understanding how to exercise your rights.

Speaking to a lawyer can assist you in understanding whether or not it would be in your best interest to speak to police, whether you are required to, or whether you should exercise your right to silence. Fortunately under Canadian law, any time a person is detained by police, they have a constitutional right to know what they are being detained for as set out in section 10(a) of the Charter of Rights and Freedoms). That person under detention also has a right to retain and instruct counsel (a lawyer) immediately as well as to be informed of that right.

Failure to inform you of these rights or to properly implement them may result in a remedy later on in court if you are charged. It is therefore always a very wise decision to speak to a lawyer immediately upon arrest or detention so that your rights are protected, so that you do not refuse to cooperate when you might be required to do so, and so that you do not provide the police with details that may be very damaging to your case at a later occasion. There is no greater right when under arrest then the right to counsel and effective legal advice; be sure to exercise it.

Call (416) 999-8389 to speak to a lawyer immediately.

What do you do if you are charged with trafficking or possession of marijuana, cocaine, ecstasy, or heroin?

traffickingUnder Canadian Law, drug charges are prosecuted by the Federal Department of Justice under the Controlled Drugs and Substances Act. Drug offences can range from very petty offences (for example, simple possession of marijuana under 30g) to very serious offences (for example, importing or trafficking cocaine).

The basic elements of proof in drug cases.

In defending drug offences, there is a common theme of proof of possession, and constitutional violations. Since most drugs are allegedly found by police in rather inconspicuous places (pockets, cars, homes, etc.), there is usually a question as to whether or not the the police discovered them in a lawful manner. Once the drugs are found, there is also a common question as to who is in legal possession of the controlled substance.

Possession of drugs can be proven in a number of ways but the police and Crown typically rely on the circumstantial evidence of where the drug was allegedly found, admissions/confessions by the accused, or wiretap evidence admitting knowledge and control over the items in question. Suffice to say that simply because drugs are found, does not mean that the case is proven. There is a heavy burden on the state to prove the case beyond a reasonable doubt against an alleged offender and having a criminal defence lawyer who understands these and other legal issues can maximize your chances of acquittal or minimizing the sentence on conviction.

If you are charged with a drug offence, you should contact a lawyer immediately to discuss your potential options and what defences may be available to you.

Many people throughout Ontario and Greater Toronto are arrested every day for offences such as theft, shoplifting, fraud, prostitution, soliciting prostitution, and minor drug offences. Many of these cases ultimately result in the charges being withdrawn once the accused completes “diversion”.

What is “diversion”?

Theft and Diversion Diversion means just that: an individual who is charged with a criminal offence is diverted out of the Court system and asked to provide some sort of reparation to society for their alleged wrong. This reparation will take the form of community service, a donation to charity, or a more specific program tailored to the individual’s specific life situation (as is often the case with people suffering from mental health issues). Upon completion of whatever terms the diversion is dependent upon, the charges are “withdrawn” meaning that you remain legally innocent of the charges. Since you are presumed innocent when you are charged until proven guilty, you remain legally innocent when your charges are withdrawn because the allegations were never proven in a Court of law against you.

Who decides whether I am eligible for diversion?

There is only one party who has the power to determine a person’s eligibility for diversion, and that person is the Crown Attorney (or the Office of the Crown Attorney). When a file first comes to the Crown’s office after bring processed by the police department, an initial screening of the file is made by the Crown Attorney. If the Crown Attorney decides that you are eligible for diversion, then the brief will be marked up accordingly and typically that accused person will be advised of that decision on their first day in Court.

The factors that the Crown takes into account when assessing a file for diversion include, but are not limited to:

Whether the person has a criminal record or past dealings with police;
Cooperation with police upon arrest;
The seriousness of the offence (amount of money lost, alleged harm done, etc.);
The cost of prosecuting the case in comparison to the seriousness of the offence;
The impact a criminal record may have upon an individual accused in comparison to society’s interest in ensuring are punished for wrongdoings; and,
The wishes of the alleged victim.
It is also important to know that simply because a file is initially screened as ineligible does not mean that is the final decision. Despite a Crown Attorney’s initial view, they may be persuaded by legal counsel that a person is eligible after all. For this reason, it is wise to retain an experienced criminal lawyer to ensure that all possibilities for diversion are canvassed.

What kind of charges are eligible for diversion?

Technically, any type of charge may be eligible for diversion; however, the most common cases where diversion is routinely offered is theft under, possession of small amounts of marijuana, and solicitation of prostitution. Other offences where diversion is offered, albeit less common, include: mischief offences, assault, fraud, being found in a bawdy house, harder drug possession, and crimes where there is no large amounts of money lost and no serious physical violence.

Again, retaining a lawyer could help convince a Crown Attorney to offer diversion when that person may not be initially eligible.

Do I have to admit to anyone what I did in order to be eligible for diversion?

Generally speaking, when a person is accepted into the diversion program, it is contingent upon that individual accepting responsibility for their wrong. An extensive confession is not required. Typically, the social worker who is interviewing the person for an initial intake will ask questions like:

Why did you do this?
Do you understand this is wrong?
Do you appreciate the costs to society in your actions?
Do you appreciate the harm you have done to yourself, family, and friends and personal reputation in committing these offences?
Have you learned your lesson?
If that worker feels that the person has learned their lesson and will not engage in similar acts in the future, that person will be advised what they will have to do (community service, etc.) in order to have their charges withdrawn.
Is what I tell the diversion worker admissible against me at trial later on? Fortunately, all of the discussions you have with the diversion office for these purposes is confidential and cannot be used against you in Court later on. Section 717(3) of the Criminal Code of Canada clearly states:
No admission, confession or statement accepting responsibility for a given act or omission made by a person alleged to have committed an offence as a condition of the person being dealt with by alternative measures is admissible in evidence against that person in any civil or criminal proceedings.

This section is placed here by legislation to facilitate people who are eligible for diversion or “alternative measures” to engage in the process without the fear of reprisal for their admissions later on.

Now that I am eligible for diversion, what happens next?

Once you are eligible, you will return to Court and adjourn your case for as much time as required to complete the terms of diversion. For example, if a person is asked to complete 35 hours of community service, they will likely be adjourned for 3-4 weeks for them to complete it.

Ok, I completed my terms, now what?

When you return to Court after completing your terms of diversion, you or your lawyer will present the proof thereof to the Crown Attorney and Court and if everything is done in accordance with the agreement, your charges with be withdrawn.
Should I retain a lawyer for this? Retaining a lawyer is always a prudent thing to do no matter how insignificant the charge may be; however, this is always a personal choice and some people choose to represent themselves. Some things to consider is that a lawyer can:

Provide guidance, confidence, and ease of mind throughout the process;
Appear on your behalf so that you do not need to miss work or feel embarrassed about being present in Court;
Negotiate a better settlement with the Crown Attorney;
Familiarize you with the proceedings and what is expected to happen;
Follow up with the police department and request that your fingerprints, records, and photographs be destroyed upon the withdrawal of your charges;
Provide you with the certified Court documentation that proves your charges were withdrawn.

If you recently acted a surety for someone on criminal charges, you may have received a “Notice of Estreat Court Hearing” from the Superior Court of Justice. These notices will typically order you appear before the presiding judge at the courthouse. Typically a date and time is provided along with details of phone numbers that you may call to provide further information.

Why is an estreatment hearing held?

These hearings are held in response to an individual who has breached their bail and now the Crown seeks the funds in which the surety had pledged on their behalf at the bail hearing. For example, if an individual acted as a surety and bailed someone out for a bail in the amount of $10,000.00 then the Crown may now wish for the former surety to forfeit that amount by Order of the Court.

What are the procedures involved in defending an estreatment hearing?

Such a procedure can be quite confusing and stressful to unrepresented individuals, particularly when large amounts of money are at stake. Having the assistance of an experienced lawyer can ensure that you do not end of forfeiting funds unnecessarily by either convincing the Crown to abandon the application or by convincing to settle for a much smaller amount than what is sought.

Call one of our experienced lawyers for estreat court today at (416) 999-8389.

For criminal cases in Ontario, the first day in the Ontario Court of Justice is not your trial date – it is an administrative appearance for the purposes of understanding what the charges are, to obtain disclosure, and to advise the Court of your intentions in retaining a lawyer.

LEARN MORE ABOUT YOUR FIRST APPEARANCE BY CLICKING HERE or by watching the video explanation above. 

Hiring a lawyer is an obvious step to anyone knowledgable of the legal system. However, a lot of people do not seem appreciate just how important it is. A criminal defence lawyer will apply their skills and experience to the specific circumstances of your case. Every case is different and requires a different approach. Navigating the criminal justice system without a lawyer is not only confusing and frustrating, but very reckless.

Unguided, there is always a potential for unnecessary and permanent consequences. If a person is charged with a criminal offence, hiring a lawyer is by far the wisest action you can take to ensure that the devastating effects of a criminal conviction are minimized or alleviated. From the very beginning, an experienced criminal lawyer can explain to you the potential outcome of your case, what risks are associated with the case, the benefits and disadvantages of proceeding to trial, the costs associated with a legal defence, and what would happen if you are found guilty of the criminal offences the accused is charged with.

Before you hire a lawyer, meet with us for free.

At Robichaud’s, we always meet with potential clients at no charge to provide general legal information about their case and what the benefits are to hiring one of our experienced lawyers to assist you with your particular legal problem. Keep in mind that before you hire a lawyer for criminal charges, you should explore your options and meet with several so that you understand the range of experience, costs, and approaches to your case.

lawyer lawyer torontoWhat lawyer you hire for you criminal case may be the most important decision you will make in your life. Before you commit to the lawyer you feel is best suited to your case and needs, make sure that you have done your research and explored all your options. Just like anything in life, lawyers vary with experience, cost, and approach. Take the time required before hiring a lawyer for criminal charges.

Call us any time for an initial consultation at no cost or commitment.

When police arrest someone for a criminal offence, the police may decide to hold the person in custody and bring them before a court to decide whether or not they should be released into the community. This process is called a bail hearing. The law requires that police bring a person before the Court within 24 hours. Once they are before the Court, a bail hearing may commence right away, or it may be adjourned up to three days if so requested and appropriate. No bail hearing may be adjourned more than three days without the consent of the accused person.

Since bail hearings take place right away, the person who wishes to bail them out (the “surety”) must act quickly to ensure that everything is in place by the the time accused gets brought before the court. With the assistance of a retained lawyer or duty counsel, a surety is advised of their roles and responsibilities. They are also advised of the minimum requirements a surety must have.

What does a surety need to know and do before bailing someone out of jail?

More specifically, a surety should:

Not have a criminal record;
Be over the age of 21;
Have an ability to supervise the accused properly;
Be willing to promise an amount of money that they could lose if the accused breached his bail;
Have the capacity to understand and enforce the conditions the Court;
Attend court on the day of the bail hearing in a punctual manner.
One of the most important aspects of a bail hearing is being properly prepared which includes, but not limited to: a well thought out supervision plan, an informed and knowledgeable lawyer, a reasonable amount of money or assets that can be pledged as collateral for an accused’s release, and a serious and respectful attitude towards the proceedings.

Bail is an extremely important part of the proceedings and must be treated with as much seriousness as the trial itself. If a person is not granted bail, they may have to wait many months until trial before being released or at a minimum several days or weeks before the detention order is appealed. Having the assistance of a lawyer will greatly increase the chances of a person being released and into the care of the proposed surety(s).

Call (416) 220-0413 for more information on bail hearings and how to properly approach the release of an accused.

Under the Criminal Code of Canada, there are three types of offences: summary conviction offences, indictable offences, and those offences where the Crown may elect to proceed by summary conviction or by indictment.

For those types of Crown election offences, they are often referred to as “hybrid offences”. The simplest explanation of the difference between summary conviction offences and indictable offences is that the former is less serious and the latter is more serious. Read below for further explanation on the implication of a summary election or a proceeding by way of indictment.

Summary Conviction Offences

Summary conviction offences include the least serious offences under the Criminal Code of Canada. Relatively speaking to the number of offences under the Criminal Code, there are actually very few pure summary conviction offences. Those pure summary conviction offences include: possession of marijuana under 30 grams, solicitation of prostitution, being found in a common bawdy house, etc.

There are unique aspects that apply to summary conviction offences that do not apply to indictable offences. For example, in summary conviction offences, there is a six month limitation period to proceed by way of summary conviction. Another unique aspect to summary conviction offences is that a person charged with a pure summary conviction offence (not hybrid) is not required to submit their fingerprints with police upon or after arrest or conviction. Summary conviction offences are appealed in the Superior Court of the relevant jurisdiction (and not directly to the Court of Appeal).

In Ontario, those appeals take place in the Ontario Superior Court of Justice. Summary conviction offences generally carry a maximum penalty of six months in jail, although some summary (hybrid) offences have a maximum of eighteen months in jail (e.g. assault causing bodily harm, assault with a weapon, forcible confinement, sexual assault). A person charged with a summary conviction offence is not entitled to a jury trial or to have their case heard in the Superior Court of Justice (unless it is being heard alongside an indictable offence at the same time).

Indictable Offences

summary conviction indictable offence differenceIndictable offences are the most serious of criminal offences and would include murder, acts of terrorism, robbery, drug trafficking, robbery, treason, certain types of sexual assault, and other very serious criminal acts. As one could imagine, the sentences for these types of offences are very serious and often with maximum penalties of life imprisonment. Anyone charged with these sorts of offences usually has the right to choose their mode of trial: judge alone in Provincial Court without a preliminary hearing, judge alone in Superior Court with or without a preliminary hearing, or Judge and Jury with or without a preliminary hearing. Not everyone who is facing an indictable offence is entitled to a preliminary hearing or a judge and jury trial (those exceptions are set out in section 553 of the Criminal Code). Similarly, not every type of offence permits the accused to elect to have a judge without a jury unless the prosecutor consents.

There is no limitation period for indictable offences and a person can be charged, tried, acquitted or convicted at any time the police wish to proceed with the charges provided there is a sufficient basis for doing so.

These types of offences are usually extremely complicated with serious consequences. Although it is always not a very wise choice to defend allegations without the assistance of a lawyer, doing so when facing an indictable offence is beyond unwise and is generally reckless. Appeals for indictable offences are heard by the Court of Appeal for the Province the case was heard.

Hybrid Offences

Hybrid offences are those offences where the Crown may choose to proceed by either indictment or summary conviction. These types of offences cover the majority of Criminal Code of Canada offences. The include, but are not limited to: assault, sexual assault, fraud under $5000.00, theft under $5000.00, assault with a weapon, assault causing bodily harm, possession of cocaine (simple possession), and many more.

The decision by the Crown to proceed by way of indictment or summary conviction is a discretionary one that is not subject to review by any court (unless there was a deliberate abuse of process which would be exceptionally rare and very difficult to demonstrate). In assessing whether or not to proceed by indictment or summary conviction, a Crown would consider factors that may include: the seriousness of the allegations (for example, “sexual assault” can include either touching or full intercourse), the accused’s prior criminal record, the notoriety of the case in the community, the availability of court resources, whether the offence is sworn outside the limitation period for a summary conviction, the complexity of the case, and any other relevant considerations.

If you wish to learn more, please call (416) 999-8389 to discuss these or any other issues relating to criminal law.

Every person charged with a criminal offence in Canada has a right to a trial, or they may choose to plead guilty. The decision to plead guilty, or to plead not-guilty is a complicated one that is best made with the assistance of an experienced criminal lawyer who can advise you of the consequences of either option.

What to consider before pleading guilty to any criminal charge:

criminal charges should i pleadIn making such a decision, there are several things that ought to be considered (in addition to what your lawyer advises you about your particular case). Those things might include:

What is the sentence that is being proposed by the Crown, the defence, or both as a joint position?
By pleading guilty, will I obtain a better sentence than if I was convicted after trial?
What are my chances of winning my case?
Are there evidentiary or constitutional problems with the Crown’s case that make it difficult to obtain a conviction – regardless of my factual guilt?
Even if I am pleading guilty, am I getting the least punitive sentence or can a lawyer advocate for something better?
What are the long term consequences of this sentence – is it a permanent blemish on my record?
Are there immigration consequences?
Are there family law issues that may prevent me from having access to my children?
Are there civil law issues where I could be sued afterwards for a crime I committed?
These are difficult questions that cannot be answered by anyone other than an experienced lawyer who is fully aware of your personal circumstances and your particular case.

More information on pleading guilty in criminal court:

For more information on pleading guilty, please visit lawyer Jordan Gold’s article on this issue here.

Youth charged with criminal offences are dealt with under the Youth Criminal Justice Act. This Act sets out the special ways that youth ought to be treated and recognizes a number of principles that differentiate them adult accused people. Some of these principles state that:

Young people lack the maturity of adults and that the youth system is different from the adult system in many respects, including: measures of accountability are consistent with young persons’ reduced level of maturity; procedural protections are enhanced; rehabilitation and reintegration are given special emphasis; and the importance of timely intervention is recognized;
Punishment, sanctions, and intervention for youth are often best dealt with outside the formal court process, when dealing with non-violent and relatively minor criminal acts;
Custodial sentences (jail) should be used only when it is absolutely necessary to protect the public from violence and serious offences;
The criminal justice system must focus their efforts on rehabilitating and reintegrating the young persons back into the community;
That youth should be given sentences that are meaningful to the offender and takes into consideration the effect their actions may have had on the community, the victims, and the youth himself;
Society has a responsibility to address the developmental challenges and needs of young persons;
Communities and families should work in partnership with others to prevent youth crime by addressing its underlying causes, responding to the needs of young persons and providing guidance and support;
Young persons have rights and freedoms, including those set out in the United Nations Convention on the Rights of the Child.
Even though the Youth Criminal Justice Act is meant to integrate the family and youths while providing an engaging and easy to comprehend atmosphere, the same concerns and complications may arise that one would find in adult criminal courts.

Having an experienced defence counsel can assist you, or your child, in understanding the procedures and protections afforded to you.

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